This is a felony murder case brought in form of proffers and certiorari to the United States Court of Appeals for the District of Columbia Circuit.

The petitioner, Eddie McArthur Harrison is in the D.C. jail serving a life sentence imposed following his third conviction in the United States District Court for the District of Columbia.

Affirmance of that conviction by the United States Court of Appeals for the District of Columbia Circuit and a denial of rehearing on en banc by that court, six members of that court over the dissent of Chief Judge Bazelon and Circuit Judge Wright.

In this Court, the petitioner raises two questions.

First, whether testimony given by him at a former trial to rebut confessions erroneously admitted and illegally obtained could be used against him at the retrial as part of the Government's direct case on the question of guilt.

And second, whether he has been denied a speedy trial.

The record giving lies to these questions is long and unusual but the facts are fairly simple and not really on dispute.

The petitioner and two other boys, Joseph Samson and Orson White, were indicted on April 1, 1960 for the felony murder of one Syder George Brown, a fence and gambler.

At the trial, the principal evidence against them was a set of confessions which admitted that Syder George Brown had been killed during the course of an attempted robbery.

At the trial, the boys took the stand and testified that the confessions were false and had been obtained by threats and abuse.

The truth was, the petitioner explained, that Syder Brown had been killed accidentally during an innocent attempt to pawn a shotgun with him.

Now the jury convicted, the boys, were sentenced to death which was the mandatory sentence for felony murder in the District of Columbia at that time.

Thereafter shortly, it was discovered that one of the counsel who had participated in the case was not a lawyer at all but an imposter, one Daniel Oliver Wendellholmes Morgan who had substituted himself for one L.A. Harris, a real lawyer who had left the jurisdiction.

The Court of Appeals immediately sent the case back to the District Court with instructions to receive and grant motions for a new trial.

But the boys sitting down in the district jail on death row refused to file such motions and repudiated them when they were filed on their behalf by the court appointed counsel because the boys did not want to waive their right to be tried but once for the same crime.

There the matter sat for a number of months until the Court of Appeals eventually ordered a new trial for the boys despite their refusal to ask for it.

At the second trial, again, the confessions were introduced.

Again, the boys took the stand.

Again, they were convicted, only this time they were sentenced to life imprisonment, the mandatory death sentence in the District of Columbia having meanwhile been abolished.

There followed an appeal and the case was argued challenging -- basically challenging the admission of the confessions that have been used against him in some other points.

It was argued in December of 1963.

There the matter sat for some 18 months until the Court of Appeals on its own motion ordered rehearing en banc sua sponte on the question of the admission of one of the petitioner's confessions.

Case was reargued and some six months later or two years after the original argument, the Court of Appeals issued a decision holding all of the confessions inadmissible because they had been illegally obtained.

Justice John M. Harlan: What was the reason for that long delay, appellant's concept?

Mr. Alfred V. J. Prather: There was no reason that I know of, Your Honor.

Justice Abe Fortas: Then Judge Robinson recites some when he tried the case?

Mr. Alfred V. J. Prather: He said that the -- he said that the lengthy opinions and the amount of deliberation that went into them spoke for themselves.

Chief Justice Earl Warren: Both of them what?

Mr. Alfred V. J. Prather: Spoke for themselves.

He said that the Court was accustomed to take in great pains with difficult cases like this.

Now, there followed the third trial which was very brief.

At the third trial with the confessions gone, there was no real evidence of felony murder, but the prosecutor supplied that lack by reading the testimony given by the boys to rebut the illegally obtained and inadmissible confessions at the second trial.

He also had three live witnesses and he read some other testimony from the second trial, but this other testimony didn't really make out a case of felony murder and if that had been all there was to it, the case might have been dismissed.

Certainly, it should have been.

It was as to one of the defendants, Samson.

But Orson White and Eddie Harrison were reconvicted on the basis of their testimony given at the second trial to rebut the illegally obtained and inadmissible confessions.

Justice William J. Brennan: But they didn't take the stand at the third trial.

Mr. Alfred V. J. Prather: They did not take the stand and objected vigorously to the use of their testimony from the former trial.

Justice Thurgood Marshall: Mr. Prather, where is that vagueness objection?

As I read the record, he said “I object”, the lawyer.

Mr. Alfred V. J. Prather: Well, actually, there were more than one objection and there was some discussion to this actually in the --

Mr. Alfred V. J. Prather: Well, that was at the outside -- at the outset of the testimony, that's true, Your Honor.

There were two objections, one objection when the Government started to read White's testimony then again when they started to read Harrison's testimony, then again during the reading of Harrison's testimony and then again at the end.

Justice Thurgood Marshall: On page 48, Mr. Thomas, “I object to the reading of this testimony.”

We had raised that before at the outset when Mr. White -- when his testimony was being read, too.

Justice Thurgood Marshall: Where is that in the record?

Mr. Alfred V. J. Prather: Now, that is not in this joint appendix.

It is in the transcript however.

Justice Thurgood Marshall: Well, Oh!

I'll find them.

Mr. Alfred V. J. Prather: If I don't stand on the word “vigor”, Your Honor, in the objection, there was objection to the reading of the testimony and the court understood.

Justice Thurgood Marshall: This could be rather the material if the judge had known exactly what the objection was.

He might have kept it out.

Mr. Alfred V. J. Prather: Your Honor, he certainly knew what it was before that was -- after it had been read, there's no question about that if you turn to page 65.

He said specifically the Fifth Amendment has nothing to do with it.

Has been given judicially before it's available to the Government.

Justice Thurgood Marshall: But Mr. Prather, then you would've had to declare mistrial, right, because he's sworn before the jury.

But before it went before the jury, if Mr. Thomas had explained his constitutional objections, the judge would have at least had an opportunity to consider the constitutional objections.

Mr. Alfred V. J. Prather: When he did have an opportunity to consider the precise constitutional question, he promptly overruled it and he could have at that time ruled the testimony out if he had been overviewed to entertain an objection on that ground, but he wasn't at all.

He said it had nothing to do with it.

Justice Thurgood Marshall: And if he'd file at the second course, he would have been here saying that it was before the jury and he had to have this trial.

Mr. Alfred V. J. Prather: No.

Then, he would have dismissed the case as he did against Samson because then, there wouldn't have been any case because the case was the testimony of the boys and precious little else.

Now, the Government defends the use of this testimony on the grounds that it was voluntarily given, but I don't see how they can really contend that consider the circumstances under which it was given.

The confessions -- here were these confessions that admitted guilt clearly.

The boys had objected that they were false and should not be and had been obtained by threats and abuse.

The judge had ruled that they were to go to the jury.

The boys had already been convicted once and spent 22 months on death row on account of those confessions.

They knew they were going to be convicted.

If they got on the stand, they might not have a very good chance but if they didn't get on the stand, they had no chance at all.

They were faced with certain conviction and possible death and they knew it.

Justice John M. Harlan: How old are these boys?

Mr. Alfred V. J. Prather: Well, at the time of the arrest, the petitioner was 18.

By the time of this trial, he was about 21.

Now, there was only one chance and that was to go before that jury and try to persuade them that the confessions were false and to give them the boys' own story, incriminating as that was.

And so, he took the stand but I don't see how by any stretch of the imagination that could be considered voluntary.

He testified but only under great and improper pressure, improper because it stemmed from illegally obtained evidence erroneously admitted.

And I think to use testimony obtained in those circumstances is fundamentally wrong.

When Eddie Harrison was awarded a new trial almost five and a half years after he had first been imprisoned for this offense, the least he was entitled to was a fair trial and he didn't get it.

What he got instead was a trial at which he was made the government star witness against his will with words extracted from him by the use of illegally obtained evidence.

I don't see how a conviction so obtained can be squared with either the Fifth Amendment or the fruit of the poisonous tree doctrine under the decision cited in the petitioner's brief, and so I think the conviction must be reversed, but that is not enough.

The indictment against him should also be dismissed because of the long delay in this case.

It is now more than eight years since the original indictment in this case and Eddie Harrison has been in jail all that time.

Eight years is a long time to anyone.

It's particularly long to someone as young as Eddie Harrison that's almost a third of his life.

It is all of his adult life.

An examination of the record shows that this great delay was occasioned largely by the failure of the judicial machinery to function well and expeditiously, and the failure was greatest in the Court of Appeals.

Five of those eight years nearly have been spent on appeals, four of them on court deliberations alone, and two years on that one occasion between the original argument and final decision and at that starting some three and a half years after the case, it already begun and when speedy trial had been argued to them already.

Now, I understand and I would not dispute that the right of a speedy trial is necessarily relative that it must depend someone on the circumstances that it's consistent with due deliberation and an undue haste is not required.

But when all that has been said, sometime, somewhere, somehow the right and the guarantee of a speedy trial has to be given meaning and effect.

The word speedy can only be stretched so far and I think that the Court of Appeals stretched it way beyond the breaking point when it justified the long delays in this case.

At least the guarantee of a speedy trial must guard against delays that are unreasonable or unnecessary, and the delays in this case were both.

Justice Hugo L. Black: What about a habeas corpus?

Mr. Alfred V. J. Prather: Well --

Justice Hugo L. Black: Why would not that be a better way to raise a quick and speedy trial than to have cases dismissed because of delays by the judges?

Mr. Alfred V. J. Prather: Well, I'm not sure that there's any way for this to have been raised by habeas corpus.

Justice Hugo L. Black: I would think it could.

Mr. Alfred V. J. Prather: It was pending at all times that the Court of Appeals were sitting down there to decide it.

I suppose habeas corpus might lie and it would be a little difficult when they might be coming out with a decision any day.

The case has been argued, submitted.

All it needs is the judge to make up his mind.

Justice Hugo L. Black: The habeas corpus is a broad remedy and it seemed to me that it would lie if the man didn't make any difference.

Where spending keep staying and staying and staying, I should take a man and have a right to raise it.

Mr. Alfred V. J. Prather: I think he does have, Your Honor.

Justice Hugo L. Black: By habeas corpus, haven't they?

Mr. Alfred V. J. Prather: Yes.

I don't know of a stage of this particular proceeding where it would have been appropriate, but certainly habeas corpus is an appropriate way to raise a question.

Justice Hugo L. Black: It would be pretty drastic for the government to have this case dismissed on the ground that these judges had not acted with sufficient entity, wouldn't it?

Mr. Alfred V. J. Prather: Yes, Your Honor.

The Court of Appeals wouldn't hesitate to do the same thing in the District Court cases and any number of cases raising precisely that question in the United States Court of Appeals for the District of Columbia Circuit and on much shorter periods of time than we're talking about here and there cited in the petitioner's brief.

Now, the Government on brief contends that there is another standard here that it is an essential element of a claim to denial of a speedy trial that the petitioner show that his actual trial, his defense was prejudice in some way.

That it seems to me almost changes the word “speedy” to “fair”.

What they're saying in effect is that as long as he ultimately got a fair trial, never mind the delay.

Now, I don't think that the cases that the government has cited stand for that proposition and I don't think that the word “speedy” can be stretched or the Sixth Amendment can be stretched to mean that, but even if it could, I think that there was definite prejudice to the defense in this case.

Because of the long delay, many of the witnesses were no longer available.

Somewhere --

Justice Hugo L. Black: The government?

Mr. Alfred V. J. Prather: The government witnesses.

As a result, the defendants did not have an opportunity to cross-examine these witnesses.

Now, the government said that doesn't matter because they had the opportunity at the second trial, but I don't think that's the same thing at all.

And when the U.S. attorney stood up there reading in a very authoritative fashion all this old testimony about this old crime and when the jury found out from that reading that these defendants had already been tried at least twice and had spent several years in jail on account of this very killing, they were almost found the same, that the defendants were guilty.

Justice William J. Brennan: Mr. Prather, may I ask, what reference is the government making in its plea to page 29 when it says that delays for the most part arrived at the consequence of his own or his attorney's actions which he is responsible.

Mr. Alfred V. J. Prather: Well, Your Honor, there were two things that were held to be their own fault.

First, the government contended and the court below held that when these boys -- that the whole delay that was occasioned by their refusal to seek the second trial that the Court of Appeals is willing to give them was their own fault because they should have asked for that.

And my answer to that is that they shouldn't be required to waive their double jeopardy claim in order to get the speedy trial that everybody knew they had coming.

Now, the government here says in answer to that that they could have had both, that there is no reason why they couldn't move for a new trial and maintain their double jeopardy claim, but the government argued exactly the opposite when they were down there on death row faced with that choice.

At that time, the Government was saying that you shouldn't give them a new trial unless they ask for it because they'll have a substantial double jeopardy claim.

So that's one of the delays that these folks fall.

Other delays that are attributed to these people and were by the Court of Appeals in its first opinion erroneously involves the time after the Court of Appeals finally made up its mind to go ahead and give them another trial anyway even though they wouldn't ask for it and the time when that trial was actually held.

Now, that period of time on page 8 of the petitioner's brief, we have all the dates pretty well laid out, that period of time was between June 12, 1962 when the first conviction was vacated and the case was remanded until the trial, which took place in April 22.

Now, that period of time, there was one month that we're willing to say might be attributable to the petitioner has counsel.

He asked for a 30-day delay in order to obtain a transcript to the first trial.

Now, whether the need to get a transcript in the form of proffers case is properly attributable or accounted against the prisoner, I don't know.

But we have -- but that's all of the time that was really attributable to him.

And actually in our discussion of this point and particularly the reply brief, we have dealt rather fully with that period of time.

It begins on page 7 of the petitioner's reply brief.

Justice Thurgood Marshall: How many -- how many witnesses did the defendant have in the first -- second trial?

Mr. Alfred V. J. Prather: In the second trial?

At the second trial, each of the defendants testified -- one other witness testified that I know of in connection with the petitioner, Harrison, and I believe that petitioner Samson may also have has some testimony by his relatives considering -- concerning his appearance.

Justice Thurgood Marshall: Well, how were they prejudiced by the delay?

So far, his witnesses and availability of witnesses is a concern.

Mr. Alfred V. J. Prather: I'm sorry --

Justice Thurgood Marshall: How were the petitioners injured in so far as availability of witnesses concerned by the delay?

Mr. Alfred V. J. Prather: They were not.

Justice Thurgood Marshall: So how did the delay prejudice them?

Mr. Alfred V. J. Prather: Well, first they were kept in jail for eight years without yet having a fair trial.

The sheer incarceration for eight years is a bit of time and they were under considerable duress.

Then beyond that, I think --

Justice Thurgood Marshall: Did that affect that trial?

Did it delay the trial?

Mr. Alfred V. J. Prather: No, it only affected the prisoners.

Now, it related to the trial in this way.

When the thing actually got around to being tried the last time, the prosecuting witnesses were even gone.

And when the --

Justice Thurgood Marshall: How did that prejudices them?

If all the prosecuting witnesses had gone they wouldn't be prejudiced at all, wouldn't it?

Mr. Alfred V. J. Prather: It wouldn't have made a bit of difference.

He just read their testimony right out of the transcript of the last trial and that --

Justice Thurgood Marshall: That's a different point.

I'm talking about the speedy trial point by itself.

Mr. Alfred V. J. Prather: Oh, well, I think that the effect -- well, any prejudice that stemmed from the delay is part of the speedy trial in question, and this prejudice stemmed from the delay.

But for the delay, the witnesses would have been there.

We would have people cross-examined, not some U.S. attorney standing up there reading in a very -- it carried the force and the weight of the U.S. attorney when he read it.

He read it very well.

And not only that, but the mere fact of the reading and from the actual words read, it became known to the jury that these boys had been in jail for several years.

Let me give you an example.

Let me give you an example of what he did.

This is a kind of prejudice that came from the delay.

Justice Thurgood Marshall: I read all of the included -- they raised a question and the prosecutor was raising his voice and all of those things.

I think if we accept the premises that petitioner's counsel operates on, he states a pretty convincing case.

But I think we have to step back and look at really what he is saying and what his position is.

He makes basically two constitutional claims, one under the Fifth Amendment and one under the Sixth.

His Fifth Amendment claim essentially as we understand it is that petitioner was compelled to take the stand at a second trial.

That violated his Fifth Amendment right to remain silent, and then the introduction by the government at his third trial of that testimony which had been compelled violated his constitutional right.

And he also says that his right to a speedy trial was denied.

As we understand it, principally because of delay in the Court of Appeals but as well because of the cumulative effect of the long period of time that has gone on here.

I'd like to treat first the Fifth Amendment of the claim.

Petitioner of course concedes that if the testimony that he gave at his second trial was voluntarily given in a legal sense that it was admissible against him in his third trial, that so because it's an admission against interest under accepted legal rules what would be probably used by the government.

But he says that that testimony was not freely given.

He says it was not freely given because it was given to rebut certain confessions that had been introduced and were later held to have been improperly introduced against him at that second trial.

He states that a little bit differently when he talks about the fruit of the poisonous tree.

He says that this testimony flowed from or was the result of these statements that later were held to have been improperly admitted and that therefore his testimony was the fruit of that illegality.

Justice William J. Brennan: Do you think, Mr. Beytagh that's -- would that be phrased differently if it were said that the government's use of illegally obtained admissions coerced and in that sense compelled him to take a stand?

You do have some different cases you can throw in and different analogies you can draw, but I think in substance, the claim is the same.

But we start at a somewhat different point than petitioner does.

It has been the accepted rule that, except in very rare instances when a witness takes a stand, testifies under oath that what he says is accountable for and it can be used against him in any appropriate way in a later proceeding.

Now, he had a Fifth Amendment right not to testify at all at his second trial.

He could remain silent but he didn't do that.

Under ordinary circumstances, it seems to us that the case is quite clear that that testimony would have been usable and admissible for any relevant purpose.

But he says that that's not so, that this is a different kind of case.

He says it's a different kind of case as we understand it because statements had been introduced against him, which were later held had been improperly introduced and that that triggered his taking the stand and therefore, all of that has to be wiped out.

The Government can't use it.

The matter isn't that simple, I don't think, and we don't maintain that it is.

We do think that the Court of Appeals that gave extended consideration of the difficult questions involved in this case and I will come to that later in the context of the speedy trial claim.

I think that their analysis is as pertinent as anything that I could say.

They said our federal system bestows upon -- this is at the appendix, page 75 -- our federal system bestows upon accused the choice of testifying or not, and permits what he says in the witness stand to be used against him coercively.

The record contains no suggestion that the use of the statements of the second trial was a maneuver to ring evidence from appellant.

From what it appears, the government's sole objective was to supply missing elements in its case.

Here on like situations were duress of some sort has been found, the government exerted no pressure or put no undisciplined and imposed no improper condition on appellant's right to mootness.

There was uninhibited access to counsel and so far as we can perceive, complete awareness of legal rights.

We have been referred in no case and our own intensive research is located not holding that the strength of the government's case is itself officiating a form of testimonial compulsion.

Now, petitioner says that the Court of Appeals -- yes?

Justice Thurgood Marshall: Do you agree that the second trial, without the confessions and without the testimony of the defendants, they couldn't have been convicted in the second trial?

Mr. Francis X. Beytagh, Jr.: I think that -- I think it would have been very difficult to get a conviction.

The rest of the evidence was very slim.

Justice Thurgood Marshall: Well doesn't that give you a problem as to coercion?

It was admittedly the coerced confessions that brought about them taking the stand.

Justice Thurgood Marshall: I think what you said first comes close to saying it.

My first one whether they didn't take the stand at all, they were more likely to have been acquitted.

And so, the judgment has taken the stand or the judgment was still brought about by it.

And as I understand, the petitioner, he says that's coercion or close to it.

Mr. Francis X. Beytagh, Jr.: Well, that's -- that's his argument.

It seems to us that it's quite clear that the introduction of the statements certainly had something to do with his taking the stand.

Whether they produced his taking the stand in a direct causal sense I think is another and a difficult question --

Justice Thurgood Marshall: And whether or not -- there's no question here that the prosecutor did this deliberately to get him on the stand.

There's nothing here to show that.

Mr. Francis X. Beytagh, Jr.: No, I don't think there's anything at all to show that.

The Court of Appeals concluded that that was not so.

The -- I might say this about these confessions.

I think this is quite pertinent.

Petitioner, and I think properly, refers to them as having been illegally obtained.

But I think we better take a look at how they were held to have been illegally obtained.

Petitioner made essentially three statements that were introduced.

The first statement was taken from him at the jail where he's being held on another charge, larceny or some sort of charge.

It was taken in this context.

White and Samson, the other alleged co-defendants have made statements to the police admitting their activity in regard of the murder of Syder Brown and implicating petitioner.

Those statements of course were ultimately held to have been improperly obtained in violation of Mallory because they had not properly been brought to a magistrate.

The next morning after the statements have been given, White and Samson were brought down --

Justice William J. Brennan: Excuse me Mr. Beytagh, that's only White and Samson's statements were thrown out of Mallory grounds?

Mr. Francis X. Beytagh, Jr.: Yes.

There was another statement of petitioner that came after this oral statement that was also thrown out on Mallory but that was a substantial restatement of what he'd said at the jail.

Justice William J. Brennan: So all of these then went out initially on Mallory grounds?

Mr. Francis X. Beytagh, Jr.: No.

Justice William J. Brennan: No?

Mr. Francis X. Beytagh, Jr.: No.

That's the point I'm coming to this.

Justice William J. Brennan: I see.

Mr. Francis X. Beytagh, Jr.: His oral statement given at the jail was given -- he was apprised of what White and Samson had said, and asked if he had anything to say.

And he said, “Yes,” -- it's something like this.

I don't remember the exact statement, “I might as well tell you,” and then he told his story.

Now, subsequently that story was reduced to a written statement and the story was also given to a jail classification officer.

Those other two written statements were held inadmissible under Mallory and Killough.

But this first statement was the one that precipitated the en banc reconsideration by the Court of Appeals after the second trial.

That statement was held inadmissible eventually by a six to four vote on the Court of Appeals on the ground that its introduction would violate the rule of case of Harling versus United States.

That case essentially had held that where juvenile court jurisdiction had not yet been waived, a mistake that made by an individual being held on a charge to which juvenile court jurisdiction would originally attach could not be used against him.

Now, on these circumstances, the petitioner had been 10 days short of 18 years old when the alleged felony murder occurred.

Justice William J. Brennan: Now at the second trial, was that a ground of objection to the use of the statement?

Mr. Francis X. Beytagh, Jr.: Yes.

Justice William J. Brennan: It was?

Mr. Francis X. Beytagh, Jr.: Yes, as I understand it, and --

Justice William J. Brennan: Which is to say then I've got -- defense had real confidence as events turned out.

In that ground, they might have rested on their objection without putting the defendant on the stand at all.

Mr. Francis X. Beytagh, Jr.: I think that's probably so.

I --

Justice William J. Brennan: But it took an en banc hearing.

Six to four finally had to decide that the objection was well-taken, didn't it?

We think that the issue involved here is significantly different than the one in the Simmons case.

I think it is better to say that had Simmons been decided differently, the question here would be easier for the government, but it was not.

However, it seems to me that there are two very pertinent distinctions between the situation in Simmons, as you may recall.

Simmons involved a testimony given at a motion to suppress a hearing.

The motion to suppress was unsuccessful and that testimony was introduced against the -- against Garret actually at the trial and was quite a pertinent evidence of his connection with the suitcase and its contents.

Now there, as the court pointed out in its opinion, there were two constitutional rights involved, one of the Fourth Amendment, the right to be free of unreasonable searches and seizures, and one under the Fifth, not to be compelled to testify against one's self.

Here as we see it, there's one right under the Fifth Amendment.

The court pointed out in Simmons that defendants might be deterred from taking the stand at a motion to suppress hearing and --

Justice William J. Brennan: Excuse me, Mr. Beytagh, that's what I want to get to.

Then the government's position is that these confessions were not found inadmissible on any Fifth Amendment ground, that is a coerced confession ground, but solely on Mallory or in the case of the --

Mr. Francis X. Beytagh, Jr.: The Harling.

Justice William J. Brennan: -- of Harling because he had not been, what?

Mr. Francis X. Beytagh, Jr.: Well --

Justice William J. Brennan: What should have happened?

He was --

Mr. Francis X. Beytagh, Jr.: He was -- they --

Justice William J. Brennan: He was some days under 18.

Mr. Francis X. Beytagh, Jr.: Yeah.

They can -- the Court of Appeals in fact construed Harling to this effect that even if juvenile court jurisdiction had not yet initially attached to an individual being held and they had not had the opportunity to waive it, the fact that he was under 18 at the time he committed the alleged offense was sufficient to make that doctrine applicable.

Justice William J. Brennan: Well, now -- and that doctrine was not a constitutional doctrine.

Mr. Francis X. Beytagh, Jr.: No, it's a doctrine that's derived from the construction of the juvenile court statutes in the District of Columbia, as I understand it.

Now, getting back to Simmons as I said, the court there pointed out, and we think quite significantly, that defendants might be deterred from taking the stand to support a motion to suppress if they knew that the motion to suppress was unsuccessful.

His testimony could be used against him.

The court pointed out that while the Jones case had taken care of a large number of these kinds of situations that it still remained that there were marginal cases in which this choice would be a difficult one to make.

Now, it seems to us that here, there's no question of a surrender of one constitutional right in order to assert another.

That's what the court said in Simmons.

It was something it found intolerable.

It said that the practical effect in the Simmons situation was to require an individual if the only way he could show standing and therefore an ability to raise his Fourth Amendment claim was to take the stand.

But he either had to take the stand and run the risk of waiving his right not to incriminate if he wanted to assert his Fourth Amendment right.

We think there's another important distinction and perhaps the most important one between the Simmons situation and this one.

In our view, the compulsion which petitioner might have felt to testify here was simply not dictated by any requirement that made his testifying the only way it would raise a legal issue.

In Simmons, that was so.

If -- if he didn't take the stand, if he accepted the premise on which the court offered in Simmons, there simply wasn't any way that the individual could make this claim.

He had a show of standing under our laws as it presently stands and if he didn't take the stand, by definition he couldn't show that and therefore, his Fourth Amendment right went out of the window.

This isn't so here.

It's quite clear that in order to protect his rights, he had a clear and available way to raise them and that was simply by objecting as he did to the introduction of these statements and if he was vindicated upon appeal as he indeed was.

Now, he said -- petitioner says, “Well, that's all well and good but that's simply no real alternative to me.”

Justice William J. Brennan: Would you be arguing differently if these confessions indeed were the allegation was ultimately sustained, that these were coerced confessions and in that sense violative of the Fifth Amendment privilege?

Would you give that same argument?

Mr. Francis X. Beytagh, Jr.: I think we would make the same argument.

I think it would be somewhat more difficult to make because the next is in the continuity of alleged violations of the Fifth Amendment would be very -- I'd like to also -- in conclusion on Simmons, it just seems to us that this case is not Simmons and it's not controlled by Simmons.

I'd like to mention Griffin versus California in passing because that case was relied upon by Judges Bazelon and Wright in descending from a rehearing en banc, petition denial in this last appeal.

It seems to us that Griffin is a different situation.

Griffin, as I'm sure you recall, involved a question of whether it was unconstitutional to make adverse comment on the failure to take a stand.

Now, it seems to us that there, the court said that a price was placed upon remaining silent.

The invocation of privilege was made plausibly.

The only way of course to remedy an adverse comment, as the court pointed out, is simply to take the stand because that's the only way you could avoid again those states in which the rule applied prior to Griffin.

Well, here it's quite plain that the petitioner did in fact testified at the second trial and -- so there's no question about adverse comment of that trial on his failure to testify.

The question is simply whether his election to testify was voluntary or not.

The advice that was found in Griffin it seems to us was that there simply wasn't any way to avoid this.

The petitioner had a way to avoid it.

In fact, he exercised it by testifying.

Justice Abe Fortas: Well, I suppose the petitioner here and one of the other men were in a room together and they police got a confession from the other man which was used against the petitioner.

And the petitioner was the only person who could testify that the police got that by force.

And then, petitioner took the stand and he testified to that and on cross-examination there is fact to have brought up, which were very damaging to the petitioner.

Mr. Francis X. Beytagh, Jr.: I don't quite understand how that would happen.

That -- that's one of the claims that is made here, Your Honor.

Under the Federal Court, it says that the scope of cross is limited to direct.

He says -- he says --

Justice Abe Fortas: I suppose -- no, no.

Suppose the prior convictions were brought out.

Just take --

Mr. Francis X. Beytagh, Jr.: Yeah.

Justice Abe Fortas: -- that simple example which can be done --

Mr. Francis X. Beytagh, Jr.: Right.

Justice Abe Fortas: -- in a Federal Court or anywhere else that I know of.

Mr. Francis X. Beytagh, Jr.: That's correct.

Justice Abe Fortas: Could that be used against him in a said trial?

Mr. Francis X. Beytagh, Jr.: If that relates to -- but the reason I understand it where prior convictions could be introduced is to impeach his credibility --

Justice Abe Fortas: I understand.

What I'm saying to you is -- the critical point that I'm putting to you is that this was a situation in which the confession of an alleged accomplice was being used against the man in order to show that that -- to attack that confession, he took the stand and I'm assuming --I'm asking here to assume that the only person who could have testified that the confession was compelled and not voluntary was the petitioner.

Mr. Francis X. Beytagh, Jr.: I think --

Justice Abe Fortas: Would you nevertheless say that the confession could be used against him in a subsequent trial?

I mean -- I don't mean the confession.

Could his testimony be used against him in the status before the trial?

Mr. Francis X. Beytagh, Jr.: I think the situation you posed is a closer one to the Simmons situation.

I think the argument would be more difficult.

The same argument that we make here could be made, of course.

Justice Abe Fortas: Why isn't that this situation?

Mr. Francis X. Beytagh, Jr.: Why isn't it this situation?

Justice Abe Fortas: Yes.

Mr. Francis X. Beytagh, Jr.: Because the charge --

Justice Abe Fortas: What's the distinguishing factor in your mind between the case that I've put to you and the present case with respect to the use of petitioner's testimony on the subsequent trial?

Mr. Francis X. Beytagh, Jr.: Well, it seems to me that one you have to differentiate the reasons why he says he took a stand.

In that situation that you posed, you said that he had to take the stand because that was the only way that he could show that those confessions were involuntary.

In the first place --

Justice Abe Fortas: Whereas in the present case, what happened?

Mr. Francis X. Beytagh, Jr.: Well, in the first place here, we don't have a serious question about voluntariness.

It is asserted by petitioner and he said that was one of the reasons he had to take the stand.

But it seems to me on that point, my original answer is it remains pertinent that while his prior convictions could be brought out to impeach him, that's so as to anyone who takes the stand.

But the scope of cross-examination would have been limited, if that was his problem, to matters that he raised non-direct.

And if he testified only about threats and abuse and whatever and didn't affirmatively testify about a rather different subject matter, what went on in his view at the critical time, it seems to me that could not be --

Justice Abe Fortas: Oh, wait a minute let's see if I understand you then.

What you're saying is that in the case that I put to you, the petitioner's testimony could properly have been used in the subsequent trial despite the fact that evidence, as to prior convictions, was brought out on cause for the purposes of impeachment.

And that evidence as to prior convictions is also used in the subsequent trial.

You're saying despite that, the evidence could properly be used in the subsequent trial.

Mr. Francis X. Beytagh, Jr.: I think that's right.

I don't --

Justice Abe Fortas: And despite the fact that this was the only way -- this is the assumption I'm asking you to make -- this was the only way in which the voluntariness of the confession of the accomplice could be attacked.

Mr. Francis X. Beytagh, Jr.: No.

I didn't mean to -- I thought I said that if you accept the premise that it was the only way, the question of voluntariness, you had it seems to me a different situation than you have here and --

Justice Abe Fortas: What I'm asking you is how different?

Is it different enough to make a difference in result --

Mr. Francis X. Beytagh, Jr.: Because the basic claim here is not one of involuntariness with respect to the statements that were later held.

It have been legally obtained that the claim was a -- as I've discussed the Mallory claim and this Harling rationale.

One thing that is significant to us is that petitioner really doesn't attempt to deal with the scope of the doctrine that he sticks to have the Court adopt here in the Fifth Amendment context.

We think it's quite clear that a criminal defendant's decision, whether to take the stand or not, is always one that's under some strain and some stress and that only one of the risks that is taken is that the testimony might be used against him at retrial.

It seems to us that if petitioner is correct in his basic contention, that is that a second trial testimony was compelled involuntary, then it's a little difficult to see as a logical matter why that sort of testimony could be used against him in any respect, not just on the question of guilt in a subsequent trial.

Now, I suppose petitioner would say, “Well, that's not right.

All that I'm contending for here is that it can't be used affirmatively against me and it's a different situation if the government tries to use it to impeach if I do take the stand.

And it's a different situation if I'm later prosecuted for perjury and the government tries to use this testimony.

And it's a different situation if the government uses it as a link or a lead or whatever.”

Well, maybe so, but you have to work a little bit at it, it seems to me, to destroy the consistency that seems to us to be there.

I would like in the remaining moments to mention just one more thing, first on the Fifth Amendment claim.

It seems to us the petitioner really wants to have it both ways.

He wants to be able to take the stand and he wants to try to convince the jury that they should acquit him.

In which case, he couldn't be retried at all, of course.

But if he fails on that but prevails on his objections to the introduction of these statements, he wants it to be assumed that he never took the stand and he never said anything.

He wants the slate totally wiped clean.

It seems to us that if the situation were analogous to Simmons, in other words, he couldn't assert a right to have these inadmissible statements excluded at trial and if he couldn't preserve that right for appellate review without taking the stand, then I think he should prevail under Simmons.

I think Simmons would require it.

Justice Abe Fortas: Well, if these were statements made by somebody else in prior proceeding and that person was in the courtroom, could the prosecuting attorney have gotten up and read the Q&A to the jury?

Mr. Francis X. Beytagh, Jr.: I'm not sure I understand.

If the individual was in the courtroom, would it be necessary to call him rather than --

Justice Abe Fortas: That's exactly my question.

I beg your pardon?

Mr. Francis X. Beytagh, Jr.: I think he should call --

Justice Abe Fortas: You have to call him, not should, isn't it?

Well, now what's the difference here?

Petitioner was in the courtroom, he was a prisoner but he wasn't given an opportunity to take a stand or not taking a stand but his testimony was read.

Mr. Francis X. Beytagh, Jr.: Well, he had all the opportunity in the world to do whatever he wanted to do, to take the stand and that the Government could not call him.

Justice Abe Fortas: The government couldn't call him but in the case of a person other than the defendant if the government wanted his testimony in and he were available, the government would have to call on him.

They couldn't read his prior trial testimony.

Mr. Francis X. Beytagh, Jr.: That's right.

That's the accepted rule but some people have questioned that rule.

But it seems to me that --

Justice Thurgood Marshall: But suppose he'd made a confession that's a valid confession, can you put it up?

Mr. Francis X. Beytagh, Jr.: That's right.

It seems to me that the Court of Appeals there said the analogy that they saw was that of any extrajudicial confession or statement, that if it was voluntarily made, you can say the same thing.

You can say --

Justice Thurgood Marshall: Was this a confession?

Mr. Francis X. Beytagh, Jr.: How can use that?

Justice William O. Douglas: That's the advantage of --

Justice Abe Fortas: Or an admission?

Mr. Francis X. Beytagh, Jr.: Of his testimony?

Justice Abe Fortas: Yes.

Mr. Francis X. Beytagh, Jr.: I think his testimony was whatever you want to call it.

It admitted -- it admitted very damaging elements.

Justice Abe Fortas: But it was an attempt to exculpate himself.

It wasn't an exculpatory statement.

Mr. Francis X. Beytagh, Jr.: Yes, but we don't stick to really on that because this court has said that when -- that's a terminology.

If they want to use it --

Justice Abe Fortas: I know you can't rely on it but I wonder if this is an admission or if this can be called an admission or a confession on the prior testimony.

Mr. Francis X. Beytagh, Jr.: He said that -- he said that he was -- he placed himself at the scene and he said he had a loaded gun.

You know, I think that's pretty damaging.

The jury obviously thought it was, too, coupled with the other evidence and circumstances.

Justice Thurgood Marshall: Wasn't the story that he was trying to sell a loaded, cocked, sawed off shotgun pointed at the potential buyer.

Mr. Francis X. Beytagh, Jr.: Yes.

Justice Thurgood Marshall: Was that his testimony?

Mr. Francis X. Beytagh, Jr.: He was trying to pawn it, he said.

He'd done that frequently before with this individual.

We -- we don't accept petitioner's statement that -- and I should mention this that there was simply no other evidence.

There was other evidence here.

He made an admission against interest that said that he'd done it to somebody else.

There was other circumstantial evidence against him, the trajectory of the shot, the fact that the man had a lot of money, they were seen in a black Buick just previous the -- it just seems to us that the question presented is the Fifth Amendment issue and I haven't sought to go into all those details.

I just like to touch on this Sixth Amendment argument.

Petitioner spent a good bit of time on it.

I think it's unfortunate that I don't have a little more time, but I just like to say this.

First, we understand that he says two things basically.

One, this is just too long and you can't try me anymore.

Well, it seems to me you have to look at the facts and the circumstances.

The Court -- this Court has never held that through the exercise of legal rights through appellate review and obtaining reversals and other relief that the individual can't be tried again.

In conclusion, I'd like to say that what petitioner really tries to do is to the Court of Appeals to second-guess the reasons why they had problems with the case.

I think that as we point out if one thinks about and looks at the problems, it's a very complicated matter and the time was substantial.

We don't deny that and I don't know why it took them so long, but it seems to me that it was not intolerable.

In short, we submit that the Court of Appeals would write on both Fifth and Sixth Amendment points and the judgment should be confirmed.

Chief Justice Earl Warren: Mr. Prather.

Rebuttal of Alfred V. J. Prather

Mr. Alfred V. J. Prather: Mr. Chief Justice, may it please the Court.

I think that this is an even stronger case than the Simmons case.

In that case, the court held that the testimony given in support of an unsuccessful motion to suppress could not be used against the defendant.

Now, here the testimony was given to rebut admittedly inadmissible evidence illegally obtained, whereas there it was just given in an effort to show that it was inadmissible evidence, and an unsuccessful effort at that.

Now, it seems to me far wrong for the government 5617 and far worse for the government to be able to use the testimony in this case and for the government to be able to use the testimony in the Simmons case --

Justice John M. Harlan: Supposed the Simmons case was not to put on that on the grounds?

Mr. Alfred V. J. Prather: Well, it was the tension -- I'm not going to debate with you, Your Honor.

I thought -- opinion says.

Justice John M. Harlan: Well isn't just --

Mr. Alfred V. J. Prather: Yes, I have, sir.

I agree with that.

It's certainly a distinction, but here there's a little tension between the Fifth Amendment and the Fifth Amendment.

Now, the principal contention of the petitioners at the second trial was that these confessions were obtained in violation of their Fifth Amendment rights.

They testified that they were obtained by threats and by abuse, and that the only point in which there was a conflict in the testimony between Eddie Harrison and the police office who investigated -- the police officer who testified to the contrary and obtained the confession, the testimony of the police officer turned out to be wrong and Eddie Harrison turned out to be telling the truth.

Now, there's no use arguing that those aren't voluntary confessions anymore because the jury resolved that question against him.

But the point is that they were getting on the stand to say that to claim a Fifth Amendment right, to say that these were compelled confessions and they were false.

And I don't think that this argument -- it sounds to me as if the government was saying, “Well look, these fellows were lucky to win in the Court of Appeals on that juvenile court blanc because that really wasn't much of a point.”

But there was a clear violation of Escobedo there, too.

Justice William J. Brennan: Well, I take it you might just to rest around your objection, confident that you would succeed as you finally did, and then this thing could never have happened, could it?

Had you just rested on your objection --

Mr. Alfred V. J. Prather: That boy wouldn't sit still to rest on the objection to those confessions sitting there.

Justice William J. Brennan: This was his choice?

Mr. Alfred V. J. Prather: Well, I'm not going to say that he wasn't advised by counsel, but that boy was under strong compulsion to testify.

He was fresh off death row, 22 months there.

Justice William J. Brennan: Yes, but the fact is had you -- had here just been the objection, you would not be in this difficulty since the Court of Appeals did sustain the --

Mr. Alfred V. J. Prather: That's right if those confessions didn't -- are held not to have caused him in any way to take the stand, or if his testimony can be said to be completely independent of it and not the fruit of the introduction of those confessions, then of course we have no case.

But I don't see how they can be separated, and neither did the Supreme Court of California in the Pope case which was identically this case.

And they said that the testimony was compelled by the confessions that couldn't be used and it could never be used.

I don't see -- we can look some more at the circumstances or the taking of those confessions.

It wasn't just -- this was not some little minor technical point.

This wasn't the most innocent of errors.

Those police knew they were violating Mallory, at least the U.S. attorney did when it got time to arguing in the Court of Appeals.

He confessed error.

It shouldn't have.

They shouldn't have held Samson for two years.

The U.S. attorney confessed error in his case, but it sat up there for two years, too.

And Orson White was so clear that the -- that there was no problem at all in the Court of Appeals.

The only problem was this one little confession and that was clearly obtained in violation of Escobedo.

Chief Justice Earl Warren: Mr. Prather, we understand that you've accepted the assignment of the Court of Appeals below to represent this indigent defendant, and you also accepted our invitation to represent him here and we consider that a real public service.

And that we're always comforted when lawyers will accept such appointments and we thank you for your representation of this man.

And of course, Mr. Beytagh, we appreciate likewise your representation of the Government in this case.